Opinion: Antitrust complaint against Android is an attack on open source

On Tuesday, we reported on a new complaint filed by "Fairsearch," an anti-Google group that counts Microsoft, Oracle, Nokia, and about a dozen other Google competitors as members. In recent years, European regulators have become more aggressive at policing anticompetitive behavior in the tech sector than their American counterparts. Microsoft and its allies hope that officials will conclude that Google's mobile OS strategy violates the EU's competition laws.

"Android phone makers who want to include must-have Google apps such as Maps, YouTube or Play are required to pre-load an entire suite of Google mobile services and to give them prominent default placement on the phone," Fairsearch argued in a blog post announcing the complaint. Here, the group is echoing charges Microsoft itself faced more than a decade ago after it bundled Internet Explorer with Windows.

But Fairsearch also makes an additional argument that should alarm anyone who benefits from free software—which is to say everyone who uses the Internet. Google's competitors complain about the search giant's "predatory distribution of Android at below cost." Apparently, Fairsearch believes that it's "predatory" for a company to gain market share by giving its software away for free.

That stance would have sweeping implications for the software industry because so many software companies distribute software for free. Red Hat gives away its version of Linux (in source code form, at least) as a way to generate interest in its subscriptions and support services. Other popular software packages, such as the Eclipse development environment and the OpenOffice productivity suite, have been maintained at times by commercial sponsors.

Indeed, Oracle itself is a major distributor of free software. Since it acquired Sun in 2010, Oracle has been the primary sponsor of two important open source projects, Java and MySQL. Oracle CEO Larry Ellison probably wouldn't have approved the decision to make Java open source if he'd been running Sun in 2006. But the fact remains that one of Oracle's subsidiaries is distributing a popular software program "at below cost." Presumably, Oracle wouldn't want this practice declared anticompetitive by European bureaucrats.

Such a ruling would be more beneficial to Microsoft. The Redmond giant doesn't give away much software itself and many of its proprietary products face open source competitors. So Microsoft might be better off in a world where giving away software was regarded as anticompetitive.

But accepting Microsoft's position would be detrimental to almost everyone else. Giving away software for free is a longstanding industry practice with broad consumer benefits. Obviously, free software saves consumers money, but it has other benefits as well. Free software lowers barriers to entry. The Kindle Fire and the Nook Tablet, for example, might not exist today if Amazon and Barnes and Noble, respectively, weren't able to start with Android as a base. Oracle has even offered its own version of Red Hat's Linux distribution.

Competition laws are supposed to benefit consumers, not a company's competitors. It's easy to see how Microsoft and Nokia might have been harmed by Google's decision to price its mobile operating system at zero. But there's no reason to think the strategy is harmful to consumers. To the contrary, consumers benefit greatly from the low price and broad selection of Android handsets. And despite those low prices, Android faces competition from mobile operating systems made by Apple, Microsoft, Research in Motion, Mozilla, and others.

gives away internet explorer, forced to bundle other companies software. looses billions in fines.wonder what possible history microsoft has with trying to bundle their own free software with the OS they sell.

I think that the whole thing doesn't hold water. While it is true that Android comes bundled with Google applications (Maps, Talk, etc.) what they have left off of the list is that a company can modify the OS prior to release to remove the items as well. Plus, with the ease of the Play store, Amazon App Store, etc. It's very easy to not only find a replacement for any of those applications but they can automatically install and load on the device.

As for the Open Source issue, I think that they will find themselves fighting a losing battle on that end as well. Especially since half of the companies involved in that complaint are part of the Open Source community and they know that they would lose customers (and potential developers) if they went forward with that complaint.

Not that Google isn't becoming closer and closer to Big Brother, but I think that this specific complaint just boils down to pettiness.

Like it was predatory for Microsoft to give away Internet Explorer back when Netscape Navigator was king of the web broswers?

Wow. Just wow. The stupidity of that statement has no limits.

If Windows was Open Source, anyone could have forked it and created their own version and monopoly wouldn't have been an issue. Android is free. Look at Amazon: they showed Google the middle finger and forked Android. No one is forcing anyone to do anything.

You really think Google is happy with Amazon? Yet they don't have any legal leg or market power to force Amazon to do anything. This wasn't the case back in the day with Microsoft.

None of these Google services are open source, though. How is this an attack on Open Source? Is it because Google puts out a few other things that are? I cannot reconcile this argument as anything other than a logical fallacy.

None of these Google services are open source, though. How is this an attack on Open Source? Is it because Google puts out a few other things that are? I cannot reconcile this argument as anything other than a logical fallacy.

It's not the argument about those services what is an attack on Open Source, is what's explained in the paragraph below.

Quote:

But Fairsearch also makes an additional argument that should alarm anyone who benefits from free software—which is to say everyone who uses the Internet. Google's competitors complain about the search giant's "predatory distribution of Android at below cost."

If giving free cost software away is deemed anti competitive and/or forbidden, it will be a huge issue for many open source companies.

Apparently, Fairsearch believes that it's "predatory" for a company to gain market share by giving its software away for free.

Apparently?

The blog post openly says:

Quote:

Google’s predatory distribution of Android at below-cost makes it difficult for other providers of operating systems to recoup investments in competing with Google’s dominant mobile platform, the complaint says.

Not so sure that's a legal matter, but then again France won't let Amazon ship for free so who knows?

A crucial ingredient of anti-dumping laws is the fact that once you drive the competitors away, you have a monopoly and then can drive up the prices. But that 'drive up prices' part is absent in open source. So, I think, they really have no leg to stand on (IANAL)

"Android phone makers who want to include must-have Google apps such as Maps, YouTube or Play are required to pre-load an entire suite of Google mobile services and to give them prominent default placement on the phone," Fairsearch argued

While it is fair to argue that gapps comes with a lot of extra crap you can't get rid of, it's not fair to say they must have a "prominent placement" on the phone. My Samsung phone prominently displayed it's own versions instead of Google's. (Most of which I promptly hid and/or disabled.)

None of these Google services are open source, though. How is this an attack on Open Source? Is it because Google puts out a few other things that are? I cannot reconcile this argument as anything other than a logical fallacy.

So there's two parts to the complaint: they are complaining that you have to bundle all of google's service if you want some of them and give them prime billing on the phone (a package deal, as it were) and they are complaining that android isn't fair because it's free. It's that second point that is leads to the slippery slope.

The author makes a really good point that Android itself is free because it's open source. If Microsoft really wanted to, they could fork android, throw bing, bing maps, outlook.com, skydrive, etc. on there, and sell it as their own. And probably do better than windows phone has, honestly.

"Giving away software" (which they the complaint argues is actually anti-competitive because they're "selling below cost") is the key to many companies who work with open source, where the product itself is free and services that are related to it (ubuntu one, service contracts, etc.) are what actually earn the company money. In this case Android is free, but the google apps are the services that are optional that actually earn Google money. If the complaint goes forward and "giving away" software is ruled as anti competitive a lot of companies that rely on open source products would be in trouble.

EDIT: IagoRubio beat me to it, but, you know, if you want to read a lot more words that say the same thing I totally have him beat!

This entire thing stinks of desperation. Microsoft has stumbled badly lately. They have almost no presence in mobile and they followed up Windows 7 (which is a great OS), with Windows 8, which is in my opinion is an atrocity of an OS. So rather than compete on merits, they have to resort to shady, underhanded tactics like this and also demanding royalties for nonsense patents. This is what happens when a company has rested on its laurels for too long.

There was only one government owned telco, which charged money per minute you used your phone. That is, you couldn't dial local numbers for free. This part is important in what they did to Microsoft.

So Microsoft decided they wanted to be an ISP, at least in Denmark (and probably around Europe), and started their service up. Of course ISP's need to earn money, so Microsoft charged a monthly fee for you to be allowed to use their services (like any ISP does today).

After a few months, when Microsoft had got the whole operation up and running, installing all their gear in all the cities, spend tons of money on advertisements, the government telco played their hand.

Every phone owner in Denmark recieved a copy of Netscape in the mail, along with their account and password for their new *free* to use ISP. Obviously, since the telco charged people per the minute to use the phone line, /they/ didn´t need to charge anything else.

Thus Microsofts ISP dreams were completely shattered within days, and everyone was using Netscape.

edit:

The sage btw. ended when the government decided it wanted to be less socialist, and sold their infastructure such as the telco, electricity net etc.

Ameritech purchased the telco, but was in the contract to the government obliged to roll out ADSL to 95% of the population by, 1998 I think, and furthermore they'd have to act as dumbpipes, in that they'd have to resell this access to everyone at a market price the government decided.

I have stopped listening to what parties such as MS and Oracle have to say with any expectation of logic or integrity, or even that what they say has any literal face value meaning. The only sure thing is that they think their statements will somehow further their profits.

Microsoft is pissed because they cant seem to sell the boat loads of Windows phones that they and Nokia would have liked.Plus they entered the mobile horse race 3/4 way through expecting to have a free pass. Notice who isnt crying ?! Apple of course!!! Oracle is angry because they cant win a day in court against Google ,so no cash for them also.

So Apple is fine because they charge more for their product even though iOS is completely locked down and can't be licensed?

The argument makes exactly no sense and the existence of the very popular Kindle Fire products pretty much negates the entire argument (i.e. the Amazon Android products need to be rooted in order to even get the Play store and google apps).

None of these Google services are open source, though. How is this an attack on Open Source? Is it because Google puts out a few other things that are? I cannot reconcile this argument as anything other than a logical fallacy.

Open Source isn't the same as free. You can distribute your software as open source, but unless you actively relinquish your copyright, it's still not free to copy. And you can charge whatever you want for it.

All Google has to do is point out Amazon, point out modder communities, and say "Look, if you want to work with us directly we have these conditions, if you want to strike out on your own, go right ahead. Right now, right this very second, Kindle Fires are out there running Android without our services - and we have neither the will or the power to stop it. You do not see that occur with iOS, Windows, or anything ever touched by Oracle."

Edit: I'm not a huge fan of Google either - but another note is that I can also download plenty of Microsoft software onto my Android phone, and use the outlook app to get my work emails at home (i.e. the magic machine full of numbers that we need to make decisions is down, please fix it but don't ask for a raise! type emails).

In the US, monopoly, pricing, and bundling standards are applied when a company has achieved a "market dominance." Otherwise, you are free to give away whatever you want as long as you don't meet some some part of this definition.

With Microsoft, it was reasonable to say that windows was a monopoly and therefore monopoly rules applied. With Android, it's harder to say. World Wide, it's #1 in market share, but that share is waning, and #2 iOS is not some minority player like Windows Phone, it's like 35% to Androids 51% (forgive me if I don't have exact numbers, just trying to illustrate the point). That's significant.

I would like to understand what the standard is in Europe and see how it would be applied. I think this OpEd takes the stance that "Fairsearch" is attacking free and open. What's more important is does the lawsuit properly address and apply the european standard or not? If not, then it's just political grandstanding.

Let it be clear that Google is not entirely free and open. Android is "owned" by Google and Google intends to profit on it. Truly open standards on the web, like Linux, are not owned in a business sense and Linus, the key manager of the kernel, does not directly profit from distributing Linux as open source. Maybe he gets some unique speaking gigs, but that's hardly exploiting monopoly power.

Here's a future scenario that could be a monopoly problem. Google may be argued has a relative monopoly on search. They leverage their ads impression business to give away search for free, and then give away android for free. They capture over 75% of the handset market, and all those handsets report data directly back to Google and Google only in order that this information can be sold to businesses, who are Google's true customers. Using your monopoly power in search to gain market control over another market, namely the handset software market. Google is a business that has to make money, and this is how monopolies make money, by crushing competitors in multiple markets. The OpEd entirely misses that. I'm not saying Google can and is doing that now, but I'm saying it's possible, in the future.

Like it was predatory for Microsoft to give away Internet Explorer back when Netscape Navigator was king of the web broswers?

Microsoft giving away Internet Explorer was absolutely not a problem. The problem was the bundling of Internet Explorer with Windows, in such a way it could literally not be removed.

Maps et alia not only can be removed, I believe it doesn't even come with the pure stock open-source Android (my Android media player, for instance, didn't have any Google-branded apps installed when I got it).

How do you prove what it costs to make and distribute software? Using math rather than accounting, would the cost of software reduce over time? How often is the next version of software cheaper than the last version?

Don't worry everybody - after all we **are FORCED** to fund Microsoft's legal jollies against opensource.

What I mean is the fact that schools, hospitals, police, etc are all using Windows desktops still when there is absolutely no need (better) free alternatives exist. his is due to the fact they got a monopoly during the 90's when competition didn't really exist and use tactics outlined in the Halloween documents (at the end of the 90's) to keep their position by ensuring that competition cannot viably exist and 'customers' get locked in forever.

I have a problem with being forced to fund a company that damages innovation for all and doesn't pay its fair share in Tax...

I'm going to have a major issue when schools/public services want to spend my hard earned money on their Windows 8 'upgrade' , unless they stop using Windows that is where they are heading.

At least if our tax money went to an open source company improvements would benefit technology for all, not Microsoft/Oracle lawyers.

So Apple is fine because they charge more for their product even though iOS is completely locked down and can't be licensed?

In the US, monopoly laws require you to show "market dominance" in something. Show me a market where Apple has true Market Dominance. They aren't #1 in mobile operating system market share, They may be #1 in download apps from their store, but Google is now a close #2, so they don't hold market dominance. They are #1 in profit share, but considering monopolies are judged by their affect on consumers, how much profit Apple makes is of no concern when a majority of customers world wide buy Android phones. They are near the top in actual desktop PC sales, but the market share is like 10% which is not dominance. They are nowhere near to in desktop operating system share, which Windows still dominates, and is in fact was declared a monopoly in US and Europe and then used that power to punish competitors and PC makers who did not fall in line (though little has been done to properly punish Microsoft for this).

There are plenty of debates to be had on this lawsuit, but dragging Apple into it makes no sense.

Or they can build their own "branded" OS's and try to get it on all the same types of phones android runs on? I would love to be able to install multiple OS's on my phone. Sadly no one is even close to competing with android & it's for a lack of trying not because android has a monopoly ffs.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.